Citation Nr: 0945553
Decision Date: 12/01/09 Archive Date: 12/08/09
DOCKET NO. 06-35 777 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to an increased evaluation for residuals of shell
fragment wound (SFW) of the left forearm, Muscle Group (MG)
VIII, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Maureen A. Young, Counsel
INTRODUCTION
The Veteran had active military duty from September 1952 to
June 1954.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2006 rating decision issued by
the Department of Veterans Affairs (VA) Regional Office (RO)
in San Juan, Puerto Rico.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the Veteran
if further action is required.
REMAND
The Veteran contends that his service-connected residuals of
SFW of the left forearm, MG VIII are more disabling than the
10 percent currently assigned. He was accorded a VA
examination for muscles in October 2008. At the time of the
examination he reported constant left forearm pain which
worsened on raining and cold days. Physical examination
showed pain, weakness and flare-ups of the muscle injury. It
was noted that the flare-ups resulted in additional
limitation of motion per the Veteran's report and decreased
strength in the left forearm. The examiner noted that the
muscle function in terms of comfort, endurance and strength
was not sufficient to perform activities of daily living. He
noted further that motion of any joint was not limited by
muscle disease or injury, but did not provide the range of
motion results. Upon careful review of the October 2008 VA
examination, the Board finds it to be insufficient for
rendering a decision on the issue of an increased evaluation
for residuals of SFW of the left forearm. Based on the
Veteran's complaints and VA examiner's findings, the Board
finds that further VA orthopedic and neurological examination
is required to determine the current severity of the
Veteran's service-connected left forearm disability. The
duty to assist includes obtaining examinations where
indicated by the facts and circumstances of an individual
case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). Where
the record before the Board is inadequate to render a fully
informed decision, a remand to the RO is required in order to
fulfill its statutory duty to assist the Veteran to develop
the facts pertinent to the claim. Ascherl v. Brown, 4 Vet.
App. 371, 377 (1993).
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited
handling is requested.)
1. Schedule the Veteran for
appropriate VA examination(s). The
claims folder and a copy of this remand
must be made available to and reviewed
by the examiner(s) in conjunction with
the
examination(s). Any indicated studies,
including x-rays, should be
accomplished.
The examiner(s) should identify all
residuals attributable to the Veteran's
SFW of the left forearm, MG VIII, to
include any scars, muscle, orthopedic,
neurological residuals, etc.
a. The examiner(s) should
specifically discuss the severity
of any muscle impairment, and
identify all of the muscle groups
involved.
b. The examiner(s) should state
whether there are any orthopedic
residuals associated with the
Veteran's service-connected
disability and identify any
joints involved (i.e., left elbow
and/or left wrist). The examiner
should report the range of motion
of the left elbow and wrist in
degrees.
c. The examiner(s) should also
describe in detail the Veteran's
scars, to include a discussion of
whether the scar(s) is an entry
or exit wound, painful on
examination, and whether it
results in any limitation of
function or disfigurement. The
size (width and length) of the
scar(s) should be measured.
d. The examiner(s) should state
whether there are any
neurological residuals associated
with the Veteran's service-
connected disability and identify
any nerves involved. If so, the
examiner(s) should specifically
discuss the extent, if any, of
paralysis of the nerves involved.
The examiner(s) must provide a
comprehensive report(s) including
complete rationales for all conclusions
reached.
2. Ensure that the medical report is
complete and in full compliance with
the above directives. If the report is
deficient in any manner or fails to
provide the specific opinions
requested, it must be returned to the
examiner(s) for correction. See
Stegall v. West, 11 Vet. App. 268
(1998).
3. Finally, readjudicate the issue on
appeal, with application of all
appropriate laws, regulations and case
law, including Esteban v. Brown, 6 Vet.
App. 259 (1994), and the
appropriateness of separate ratings.
If the decision with respect to the
issue on appeal remains adverse to the
Veteran, he and his representative
should be furnished a supplemental
statement of the case and afforded an
appropriate period of time within which
to respond thereto.
The Veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims
(Court) for additional development or other appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).